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Blog comments do not reflect the views or opinions of the Author or Ancel Glink. Some of the content may be considered attorney advertising material under the applicable rules of certain states. Prior results do not guarantee a similar outcome. Please read our full disclaimer

Wednesday, February 23, 2022

Court Finds FOIA and OMA Lawsuit Challenging Closed Session Was Properly Dismissed

An Illinois Appellate Court recently ruled in favor of a public body in a lawsuit claiming the public body violated the Open Meetings Act and FOIA relating to a closed session. Pal v. City of Elmhurst, 2022 IL App (2d) 210048-U.

On June 15, 2020, a City Council went into closed session to discuss the pending retirement of a City director and whether to fill the soon-to-be vacant position. After that meeting, the City mistakenly posted the closed session minutes from that meeting on the City's website, and plaintiff was able to download those minutes. The plaintiff then filed a request for review with the Illinois Public Access Counselor (PAC) and also filed a lawsuit against the City, claiming the City Council violated the OMA when it went into closed session at the June meeting. The lawsuit also included three counts claiming FOIA violations by the City. The PAC did not take action on the request for review since a lawsuit had been filed.

The City filed various defenses to the complaint, as well as a motion to dismiss the lawsuit. The City argued, among other things, that the minutes of the closed session remained confidential under state statute because the City Council had not yet detemined that they should be released to the public. The City also argued that it did not violate the OMA when it went into closed session at the June meeting.

The trial court listened to the recording of the closed session and determined that the City Council's discussions in closed session did not violate the Open Meetings Act (count I). The court also dismissed counts II, III, and IV, which alleged FOIA violations, finding that they were dependent on finding that the city council violated the OMA. The plaintiff then appealed.

On appeal, plaintiff argued that the Judge had erred in dismissing his OMA and FOIA claims. He argued that the City Council's "generalized discussions" about the City's hiring freeze prior to discussing filling the soon-to-be vacant director position was not allowed to take place in closed session. Relying on a presumption that the trial court's order had a sufficient factual basis and that the Judge had listened to the recording, the Appellate Court found no error in the Judge's dismissal of the plaintiff's OMA claim, as well as the FOIA claims that were dependent on the OMA claim. The Appellate Court also rejected the City's argument that the plaintiff invaded the City's "privilege" in the minutes of closed sessions, finding that argument moot due to the dismissal of all counts in the lawsuit. 

Tuesday, February 22, 2022

Court Finds Public Body in Violation of FOIA in Withholding Citation Data

In 2018, a requestor submitted a FOIA request to a municipal finance department (“Department”) seeking an index of certain data from the City’s CANVAS system, which is used to store, process, and track citation information for parking tickets, speed-light camera tickets, stoplight traffic tickets, booting, and towing tickets. The Department denied the request, alleging that the requested records constitute "file layouts" and, therefore, were exempt under FOIA exemption 7(1)(o), which protects:

“[a]dministrative or technical information associated with automated data processing operations, including, but not limited to, software, operating protocols, computer program abstracts, file layouts, source listings, object modules, load modules, user guides, documentation pertaining to all logical and physical design of computerized systems, employee manuals, and any other information that, if disclosed, would jeopardize the security of the system or its data or the security of materials exempt under this Section.” (emphasis added) 

The requestor then sued the Department, and the trial and appellate courts found the Department in violation of FOIA by improperly withholding the requested records under exemption 7(1)(o). Chapman v. Chicago Department of Finance. Although the Department argued that the requested file layouts were expressly exempt under exemption 7(1)(o), the court found that the records listed in exemption 7(1)(o) are not automatically exempt - instead, a public body must demonstrate that disclosing the records would “jeopardize the security of the system or its data.” Because the Department failed to show how disclosing the file layout would (as opposed to could or possibly) jeopardize the security of the Department’s CANVAS system or its data, the court ruled that the Department was required to disclose the records.

Post Authored by Eugene Bolotnikov, Ancel Glink

Friday, February 18, 2022

Appellate Court Finds Appeal of TRO in School Mask Mandate Challenge "Moot"

Many have been following the lawsuit filed by parents against the Illinois Governor, the IDPH, and the Illinois State Board of Education, among others, that challenged the State of Illinois' school mask mandate that had been enacted by state agency emergency rules. On February 4, 2022, a Sangamon County Judge issued a temporary restraining order (TRO) declaring the emergency rule "null and void" and restraining enforcement of Executive Orders 2021-18, 2021-24, and 2021-25. 

That ruling was appealed to the Illinois Appellate Court (4th Circuit), which issued a ruling yesterday declaring the matter "moot" because the emergency rules that were the subject of the circuit court's ruling had expired. Specifically, on February 15, 2022, the Joint Committee on Administrative Rules (JCAR) objected to and suspended the IDPH's renewal of the emergency rules relating to school mask mandates, meaning that the emergency rules had expired by their own terms on February 13, 2022. Since none of the rules that the circuit court found null and void are currently in effect, the appellate court ruled there was no longer a controversy for the appellate court to decide. Austin et al. v. Board of Education of Community Unit Sch. Dist. 300, et al., 2022 IL App (4th) 220090-U. 

One paragraph of interest in the appellate decision references the authority of local school districts to act on their own to address COVID-19. That language is reprinted below.

We note the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19. Thus, it does not appear the school districts are temporarily restrained from acting by the court's TRO.

Wednesday, February 16, 2022

PAC Rejects Public Body's Use of "Investigatory Exemption"

The PAC issued its second binding opinion of 2022, concluding that a Village violated FOIA by failing to prove that certain records were exempt from disclosure under several FOIA investigative exemptions. PAC Op. 22-002

In 2021, a not-for-profit organization that provides certain services to persons impacted sexual abuse submitted a FOIA request to a municipal police department seeking certain records regarding their client. The Village denied the FOIA request in its entirety citing FOIA exemption 7(1)(d)(ii), which exempts records that would interfere with active administrative enforcement proceedings, and FOIA exemption 7(1)(d)(vii), which exempts records that would obstruct an ongoing criminal investigation.

The requester appealed to the PAC, which found that the Village improperly withheld the responsive records. The PAC determined that the Village failed to provide a specific basis as to why the investigatory exemptions applied. Specifically, the PAC found that the Village failed to demonstrate that the records related to any "active administrative enforcement proceeding," that a criminal investigation was ongoing, or how disclosure of the records would obstruct that investigation. 

The PAC also noted that section 2.15(a) of FOIA requires municipalities to disclose basic arrestee information, and the Village failed to demonstrate how disclosing any of this required information would interfere with a law enforcement proceeding or endanger law enforcement or other persons.

Post Authored by Eugene Bolotnikov, Ancel Glink

Tuesday, February 15, 2022

TIF Bill Would Drastically Change Local Economic Development Authority

The Illinois General Assembly is currently considering legislation that would dramatically change how municipalities create and administer tax increment financing (TIF) districts. If approved, Senate Bill 2298 would (among other things):

  • Cut the length of most new TIF districts from 23 years to 10 years.
  • Revise statutory definitions to prohibit municipalities that are considering creating a new TIF district from relying on, among other things, whether (1) the district contains dilapidated or deteriorating structures; (2) whether the district’s buildings lack proper ventilation, light, and sanitary facilities; (3) whether the district has a high number of vacancies; (4) whether the area embraces modern city-planning practices; and (5) whether the value of the land in the district is appreciating at a slower rate than the community as a whole.
  • Prohibit communities from establishing a new TIF district in an area currently occupied by a TIF district (i.e., “re-TIF-ing” an area).
  • Prohibit municipalities from using funds remaining in the TIF district account at year end to pay for redevelopment project costs without the taxing districts’ (e.g., school districts, park districts, townships) prior consent.  
  • Prohibit municipalities from annually declaring and distributing money remaining in the TIF district account to the taxing districts without the prior consent of the other taxing districts.

In practice, SB 2298 seems designed to make it more challenging for municipalities to both create new TIF districts and to realize the community benefits that TIF districts can provide. As many of our readers know, TIF districts provide perhaps the most effective local economic development tool communities can use to try to resolve the real problems resulting from underperforming neighborhoods. SB 2298 would undoubtedly alter how, when, and if municipalities use TIF districts to try to address local problems.  

More information about SB 2298, including when the bill will next be debated, is available on the Illinois General Assembly’s website.

Post Authored by Greg Jones, Ancel Glink

Monday, February 14, 2022

City Council's Remote Meeting in Violation of Open Meetings Act

The Illinois Attorney General's Public Access Counselor (PAC) issued two new binding opinions recently, one dealing with remote meetings under OMA and one dealing with FOIA. We are reporting on the OMA opinion in today's post where the PAC found a City Council in violation of OMA for its remote meeting practices. PAC Op. 22-003. The opinion provides some guidance to public bodies on how the PAC interprets the public notice requirements for remote or hybrid (meeting that allows remote and in-person attendance) meetings held under section 7(e) of the OMA. 

A member of the public filed a request for review with the PAC alleging that a City Council provided inadequate notice of a remote meeting held on January 11, 2022. She claimed that although an agenda was posted at City Hall indicating that the City Council would be meeting on Jnauary 11th via Zoom, the agenda did not include a Zoom or other web-based or telephone access link for the public to attend the remote meeting. When she had contacted the City to request the link, it was provided to her via text message; however, she said the link was not provided in a timely fashion and she missed a portion of the meeting. 

The City responded that the City provided the Zoom link to her and she did, in fact, attend and participate in the City Council meeting. The City also noted that members of the public were welcome to attend the meeting in-person. In response to follow up questions from the PAC, the City noted that although the Zoom link was not posted on the agenda/notice, members of the public could request the link. The City also noted that the City did not have an audio or video recording of the meeting. 

The PAC determined that the City Council's remote meeting on January 11th was not in compliance with the OMA for several reasons.

First, the PAC determined that section 7(e) of FOIA requires a public body to post the remote meeting access information on its website with the meeting notice/agenda at least 48 hours in advance of the meeting. In this case, the agenda did not include information as to how the public could access the Zoom meeting, so the City Council did not provide adequate advance notice of the remote meeting. The PAC stated that the remote access information should be provided and accessible to the public during the 48 hour period before the meeting, and the statute expressly requires that the information be posted on the public body's website. The PAC stated that the website posting requirement in 7(e) of the OMA does not distinguish between public bodies who maintain their own websites nor did that provision consider the size of the public body. 

Second, although the City informed the PAC that members of the public could have attended the meeting in-person, the PAC found that the agenda did not provide the public with sufficient information about in-person access. The "location" information on the agenda stated it would be a "Zoom Meeting."

Finally, the PAC stated that the City violated the OMA by not making a verbatim audio or video recording of the remote meeting as required by section 7(e)(9) of the OMA. 

The PAC directed the City to (1) include all remote access information in the meeting notice/agenda in the future; (2) specify on the agenda when in-person attendance is allowed at any remote/hybrid meeting; and (3) make and keep a verbatim audio or video recording of future remote meetings.

Monday, February 7, 2022

New Podcast Episode: Regulating Controversial Park Activities

Ancel Glink's Quorum Forum Podcast has released a new episode: Episode 61: Not in My Park! Regulating Controversial Park Activities.

In this episode, Ancel Glink attorneys discuss surveillance, cannabis, guns, and other controversial activities regulated by park agencies. This episode was recorded at a session presented at the recent 2022 IAPD/IPRA Soaring to New Heights conference.

Thursday, February 3, 2022

PPP Exclusion of Adult Entertainment Businesses Did Not Violate First Amendment

The Seventh Circuit Court of Appeals recently ruled against a group of adult entertainment businesses that had filed a lawsuit to challenge the Small Business Administration's denial of benefits to the businesses under the Paycheck Protection Program (PPP). Camelot Banquet Rooms v. United States Small Business Administration.

When Congress enacted the PPP program to provide COVID relief funding to eligible businesses, it had expressly excluded businesses that present or derive more than a minimal gross revenue from live performances or depictions or displays "of a prurient sexual nature." 23 businesses that fall within this exclusion filed suit, claiming that the exclusion penalizes them from engaging in expressive activity protected by the First Amendment. The Seventh Circuit disagreed with the adult entertainment businesses, finding that the program does not restrict any First Amendment protected activities. Instead, by excluding the businesses from the PPP program, the federal government simply chose not to subsidize the adult entertainment, which does not implicate the First Amendment. The Court vacated the district court's preliminary injunction and remanded the case back for further proceedings.

Tuesday, February 1, 2022

PAC Finds in Favor of Public Body in Appeal Involving Attorney-Client Privilege FOIA Exemption

In its first binding opinion of 2022, the PAC issued a binding opinion finding in favor of a public body in a FOIA appeal involving the attorney-client privilege exception of FOIA.

In October 2021, a reporter submitted a FOIA request to a County State’s Attorney’s Office (SAO) seeking reports prepared by a State’s Attorney to County Board members regarding the use of county funds for certain purposes. The SAO denied the FOIA request pursuant to FOIA exemption 7(1)(m), because the responsive records contained exempt confidential attorney-client privileged communications and work product documents. The journalist appealed the denial to the Illinois Attorney General's PAC Office, claiming that the SAO improperly withheld the records because the State's Attorney was not acting as a legal advisor in connection with the records, but was instead providing non-legal public relations advice.

In PAC Op. 22-001, the PAC found that the SAO did not violate FOIA when it denied the FOIA request pursuant to FOIA exemption 7(1)(m). The PAC first acknowledged that the attorney-client privilege does not apply when an attorney engages in communications that seek or convey business or other non-legal advice to a client. However, in this case, the PAC determined that the responsive records were prepared by a State's Attorney in her capacity as the County Board's attorney and were for the primary purpose of providing legal guidance to County Board members on a specific issue. Because the records reflected the substance of the State's Attorney's opinions and her confidential legal advice concerning the underlying matter, the PAC concluded that the records fell within the scope of FOIA’s exemption for confidential attorney-client communications and were properly withheld.

Additionally, the PAC found no indication that the SAO or the County Board shared records with outside parties or otherwise waived the attorney-client privilege. The PAC further determined that even if the contents of the responsive records had influenced statements to the public or the media, the records would still be protected by the attorney-client privilege because their primary purpose was to provide legal advice.

Post Authored by Eugene Bolotnikov & Julie Tappendorf, Ancel Glink